Citation Nr: 1342064 Decision Date: 12/19/13 Archive Date: 12/31/13 DOCKET NO. 07-20 831A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to an evaluation in excess of 20 percent for osteoarthritis of the right knee, prior to August 15, 2006. 2. Entitlement to an evaluation in excess of 30 percent for status-post total right knee arthroplasty, from October 1, 2007. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The Veteran served on active duty from November 1971 to May 1972. This matter arises to the Board of Veterans' Appeals (Board) on appeal from December 2005 and April 2006 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The record before the Board consists of paper claims files and an electronic file known as Virtual VA. In December 2010, the Board remanded the case to the RO for additional development. Entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Prior to August 15, 2006, right knee osteoarthritis was manifested by range of flexion limited to no worse than 45 degrees and range of extension to no worse than 5 degrees; additional functional impairment due to pain on extension was also shown. Lateral instability or subluxation is not shown during the earlier appeal period. 2. From October 1, 2007, the right total knee replacement has been manifested by chronic residuals consisting of severe painful motion and weakness. CONCLUSIONS OF LAW 1. Prior to August 15, 2006, the criteria of a schedular rating greater than 10 percent for right knee limited flexion are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5260 (2013). 2. Prior to August 15, 2006, the criteria of a separate 10 percent schedular rating for right knee limited extension are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5261 (2013). 3. From October 1, 2007, the criteria of a 60 percent schedular rating are met for right total knee replacement. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5055 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process and Duties to Notify and Assist As noted in the introduction, the Board remanded the case for development in December 2010. When the remand orders of the Board are not complied with the Board itself errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). VA has complied with all remand orders of the Board. Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and VA must assist the claimant by making reasonable efforts to obtain all evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(b) (2013); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). A VA notice letter must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits and the notice letter must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). VA's notice requirements that are set forth at 38 U.S.C.A. § 5103(a) and at 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103 (a) and 38 C.F.R. § 3.159 (b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, VA must notify the claimant that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. With respect to the right knee rating claims on appeal, an August 2005 notice letter informed the Veteran of how to substantiate his underlying claim for a temporary total rating. Additionally, a March 2006 letter informed him of the general criteria for assigning disability ratings and effective dates. The matter was subsequently readjudicated curing any timing error. See Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006). Moreover, the Veteran has shown actual knowledge that the evidence needs to show that his right knee has gotten worse to warrant a higher rating. VA's duty to assist the Veteran in the development of the claim has also been met. The service treatment records and all pertinent VA and private treatment records have been obtained and associated with the file. More recent VA treatment records were obtained pursuant to the Board's December 2012 remand. VA examinations and opinions with respect to the issues on appeal were obtained during each portion of the appeal period, including pursuant to the Board's December 2010 remand. See 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The medical examinations and opinions obtained in this case are adequate for the right knee rating claims, as they are predicated on a full reading of the private and VA medical records in the claims files. The medical experts considered the pertinent evidence of record and the statements of the claimant and provided a rationale for the opinions stated, relying on and citing to the records reviewed. Accordingly, VA's duty to assist with respect to obtaining a VA examination or opinion has been met. See 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). II. Analysis Disability Ratings Disability ratings are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2013). Diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. The entire medical history is reviewed when making disability evaluations. 38 C.F.R. § 4.1 (2013); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2 (2013). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7 (2013). For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45 (2013), pertaining to functional impairment. In applying these regulations, VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, or incoordination, including during flare-ups. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, or incoordination. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). 38 C.F.R. § 4.59 (2013) addresses painful motion. A portion of § 4.59 states: The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. When § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. See Robinson v. Peake, 21 Vet. App. 545, 552 (2008) (the Board is required to consider all issues raised either by the claimant or reasonably by the record), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); Schafrath, 1 Vet. App. at 593 (applicable provisions of law and regulation should be addressed when they are made "potentially applicable through the assertions and issues raised in the record"). Burton v. Shinseki, 25 Vet. App. 1 (2011). In Fenderson v. West, 12 Vet. App. 119, 126-7 (1999), the United States Court of Appeals for Veterans Claims (Court) distinguished a claim for an increased rating from that of a claim arising from disagreement with the initial rating assigned after service connection was established. The Court has held that where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. See Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). In this case, staged ratings have been assigned. Right Knee Rating Prior to August 15, 2006 A June 2003 VA general medical compensation examination report reflects that the Veteran had recently been treated at an emergency room for painful right knee osteoarthritis. Severe pain and stiffness were reported. The right knee flexed to 45 degrees, accompanied by pain and grimacing. McMurray's sign was negative (a positive McMurray's sign/test is a cartilage click during knee manipulation and indicates meniscus injury, Dorland's Illustrated Medical Dictionary 1525, 1679 (28th ed. 1994)). Concerning stability, the examiner stated, "Right now, he is using an Ace bandage and crutches and that gives him some stability." The diagnosis was osteoarthritis. In September 2004, the RO granted service connection for osteoarthritis of the right knee and assigned an initial 10 percent rating effective from November 2003. In May 2005, the Veteran submitted a claim for TDIU and he reported that a recent MRI showed torn right knee cartilage and arthritis. The Veteran underwent VA arthroscopy of the right knee in July 2005. The post-operative diagnosis was right knee meniscus tear and incompetent anterior cruciate ligament (ACL). A partial meniscectomy was performed. During convalescence in August 2005, right ankle and foot swelling and aching were reported. Foot swelling, aching, and pain had improved. The Veteran was walking without difficulty. A September 2005 VA physical therapy report noted right knee range of motion from 5 to 90 degrees with loss of strength of hamstrings and crepitus. The Veteran was restricting from using stairs that lacked a handrail. In October 2005, hamstring and quadriceps strength remained diminished. A January 2006 VA general medical compensation examination report reflects that right knee range of motion was from zero to 105 degrees, limited by pain. There was crepitus on motion and tenderness to palpation over the right knee joint. There was at least some decreased strength of the muscles that act on the right knee. There was no apparent joint laxity. A January 2006 VA orthopedic clinic note reflects that the right knee exhibited crepitus and tenderness. The range of motion was zero to 120 degrees. The Veteran was to continue treating the right knee with ice and massage. The Veteran underwent right total knee replacement on August 15, 2006. Thus, the earlier rating period for right knee osteoarthritis ends on August 14, 2006 because a temporary total rating was assigned due to the surgery. The RO initially used Diagnostic Code 5014 for "osteomalacia" to evaluate the right knee although the Veteran was service connected for osteoarthritis. In any event, the disabilities are evaluated in the same manner under Diagnostic Code 5003 for degenerative arthritis. Under Diagnostic Code 5003, degenerative arthritis is rated on limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2013). Limitation of motion of the knee is rated under Diagnostic Codes 5260 and 5261 as follows: Flexion limited to 15 degrees is rated 30 percent. Flexion limited to 30 degrees is rated 20 percent. Flexion limited to 45 degrees is rated 10 percent. Flexion greater than 45 degrees is not compensable. 38 C.F.R. §§ 4.71, Plate II (2013), 4.71a, Diagnostic Code 5260. Limitation of extension of the leg at the knee (normal extension being to approximately 0 degrees) will be rated as follows: Extension limited to 45 degrees is rated 50 percent. Extension limited to 30 degrees is rated 40 percent. Extension limited to 20 degrees is rated 30 percent. Extension limited to 15 degrees is rated 20 percent. Extension limited to 10 degrees is rated 10 percent. Extension limited to 5 degrees is noncompensable. 38 C.F.R. §§ 4.71 Plate II, 4.71a, Diagnostic Code 5261. When rating a knee joint, other rating considerations arise. Under Diagnostic Code 5257, slight knee disability due to instability or subluxation warrants a 10 percent rating. Moderate knee instability warrants a 20 percent rating and severe instability warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Cartilage, semilunar, dislocated, with frequent episodes of locking, pain and effusion into the knee joint warrants a 20 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Symptoms due to the removal of the semilunar cartilage of either knee warrant a 10 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5259. Where a claimant has arthritis and instability of a knee, separate ratings are authorized under 38 C.F.R. § 4.71a. VAOPGCPREC 23-97. For a knee with lateral instability rated under Diagnostic Code 5257 to warrant a separate rating for arthritis based on x-ray findings and limitation of motion, limitation of motion under Diagnostic Code 5260 or 5261 need not be compensable but must at least meet the criteria for a zero percent rating. A separate rating for arthritis could also be based on x-ray findings and painful motion under 38 C.F.R. § 4.59. VAOPGCPREC 9-98. Where a veteran has both a limitation of flexion and a limitation of extension of the same leg, the limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg. VA's General Counsel held that these separate ratings should each take into consideration any additional functional loss due to pain under 38 C.F.R. § 4.40 and DeLuca, and that these separate ratings do not amount to pyramiding under 38 C.F.R. § 4.14. VAOPGCPREC 9-2004. During the rating period for right knee osteoarthritis prior to August 15, 2006, the right knee disability was manifested by severe pain and stiffness. Range of flexion varied from no better than 45 degrees in June 2003, to 90 degrees in September 2005, and no better than 120 degrees in January 2006. As noted above, flexion limited to 45 degrees warrants a 10 percent rating. Thus, the criteria for a 10 percent rating under Diagnostic Code 5260 were fully met, at least for a portion of the earlier rating period. Because the 10 percent rating already assigned contemplated this symptomatology, a higher rating is not warranted for limited flexion of the right knee. During this rating period, right knee osteoarthritis was also manifested at times by limited extension. The September 2005 VA physical therapy report notes that right knee extension was limited to 5 degrees. Other reports within the period note full extension. Under Diagnostic Code 5261, extension limited to 5 degrees is noncompensable. However, because pain on extension was shown, 38 C.F.R. § 4.59 requires that where limitation of motion is otherwise noncompensable, the minimum compensable rating for the joint must be granted. Thus, a 10 percent rating for limited extension must be granted under Diagnostic Code 5261. This 10 percent rating adequately compensates the Veteran for additional functional impairment of the right knee due to weakness, fatigue, incoordination, and etc., as set forth in DeLuca. Thus, for this rating period, the preponderance of the evidence is against a schedular rating greater than the 10 percent already assigned under Diagnostic Code 5260; however, the evidence warrants a separate 10 percent rating under Diagnostic Code 5261. See VAOPGCPREC 9-2004. Because right knee lateral instability or subluxation was not shown during this rating period, a separate rating under Diagnostic Code 5257 is not warranted. Additionally, because frequent episodes of locking, pain, and effusion into the knee joint is not shown during the appeal period, a separate rating under Diagnostic Code 5258 need not be further considered. Finally, because the symptoms due to the removal of cartilage have already been rated under Diagnostic Codes 5260 and 5261, a separate rating under Diagnostic Code 5259 would violate the rule against pyramiding. See 38 C.F.R. § 4.14 (2013); VAOPGCPREC 9-2004. Turning to the period from August 15, 2006, through September 30, 2007, because a total rating has already been granted, there is no basis for further consideration of the rating to be assigned during this period. Right Knee Rating From October 1, 2007 Turning to the most recent rating period, from October 1, 2007, the right knee prosthetic joint has been rated 30 percent under Diagnostic Code 5055. The rating criteria found at 38 C.F.R. § 4.71a, Diagnostic Code 5055 provide a total rating for one year following prosthetic replacement of a knee joint. A total rating for one year has been assigned. Following the total rating, a 60 percent rating is to be assigned if there are chronic residuals consisting of severe painful motion or weakness in the affected extremity. 38 C.F.R. § 4.71a, Diagnostic Code 5055. Diagnostic Code 5055 also provides for rating by analogy under Diagnostic Codes 5256, 5261, or 5262, where there are intermediate degrees of residual weakness, pain, or limitation of motion. The minimum rating to be assigned for total knee replacement is 30 percent in all cases. Thus, the Board must compare the current right knee prosthesis manifestations with Diagnostic Code 5055 and with Diagnostic Codes 5256, 5261, and 5262 to determine the most advantageous rating for the Veteran. According to a September 2008 VA compensation examination report, the Veteran reported daily chronic "moderate to severe" right knee pain. He took prescription pain medication. There was no weakness or instability, but there was locking, and flare-ups of joint disease. The flare-ups of joint disease were described as "severe" and occurred daily. Range of motion of the right knee was from zero to 70 degrees. An orthopedic clinic report, dated in September 2008, reflects that the salient diagnosis was "Right knee weakness." A January 2010 VA report notes that both legs were burning like fire. Whether this is equivalent to severe right knee pain is unclear; however, a February 2010 report notes that the Veteran was restricted from taking pain medications. This restriction might add to his right knee pain. A June 2010 report notes throbbing pain in the right knee. A July 2010 VA compensation examination report reflects that there was no right leg weakness. Right knee extension was to zero degrees. Ankylosis was not shown. Pain was shown, however, and the examiner concluded that the right knee pain was "significantly out of proportion" on direct examination compared to indirect observation. An October 2010 orthopedic clinic note mentions more right knee pain and suspected muscle claudication. A November 2010 orthopedic clinic note mentions that the Veteran denied knee pain. Range of motion (apparently of the right knee) was from zero to 120 degrees. Mild "v/v" laxity was shown. In November 2010, mild v/v laxity was noted again. A January 2011 VA compensation examination report reflects that the examiner checked "yes" to the question of existence of right knee weakness and "yes' to the existence of symptoms of right knee instability. The examiner apparently found no frank instability, however. The examiner did report that there was evidence of decreased strength on the right. The examiner also reported that the Veteran stated that he had no right knee pain. From the above facts, it is apparent that right knee weakness was shown during the most recent appeal period, although not consistently. Likewise, severe pain is shown or strongly suggested, although not consistently. Finally, lateral instability is found, although not consistently. Concerning inconsistent results, the Board must reconcile these variances into a consistent picture that accurately represents all elements of the disability. "It is the responsibility of the rating specialist to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the rating may accurately reflect the elements of disability present." 38 C.F.R. § 4.2. At the least, the Veteran's symptoms raise a reasonable doubt as to whether they are chronic residuals rather than intermediate residuals. When reasonable doubt is resolved in his favor, the Board finds that, from October 1, 2007, the right total knee replacement more closely approximates chronic residuals consisting of severe painful motion and weakness. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7. In view of this finding, the Board concludes that a 60 percent rating is warranted under Diagnostic Code 5055, which is the most advantageous to the Veteran. This is the maximum schedular rating for his total right knee replacement after the one-year convalescence. Extraschedular Consideration The above determinations are based upon consideration of applicable rating provisions. It should also be pointed out that there is no showing that the Veteran's right knee arthritis total knee replacement have reflected so exceptional or unusual a disability picture as to warrant the assignment of any higher evaluation on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) (2013). The symptoms of his disability (painful limited motion, severe pain and weakness) have been accurately reflected by the schedular criteria. Without sufficient evidence reflecting that the Veteran's disability picture is not contemplated by the rating schedule, referral for a determination of whether the Veteran's disability picture requires the assignment of an extra-schedular rating is not warranted. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). ORDER Prior to August 15, 2006, a schedular rating greater than 10 percent for right knee limited flexion is denied. Prior to August 15, 2006, a separate 10 percent schedular rating for right knee limited extension is granted, subject to the laws and regulations governing payment of monetary benefits. From October 1, 2007, a 60 percent schedular rating is granted for the total right knee replacement, subject to the laws and regulations governing payment of monetary benefits. REMAND According to 38 C.F.R. § 4.16(a) (2013), total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. For the entire appeal period, the schedular requirements for TDIU have been met. In the decision above, additional disability benefits have been granted by the Board. Prior to Board adjudication of the TDIU claim, the claim for TDIU must be re-evaluated by the RO. This preserves the Veteran's right to "one review on appeal to the Secretary" as set forth at 38 U.S.C.A. § 7104 (a). Moreover, in light of the recently granted benefits, should TDIU continue to be denied, a supplemental statement of the case (SSOC) must be issued and the Veteran must be afforded an opportunity to submit additional evidence or argument prior to Board adjudication. In view of the remand, updated VA treatment records should be obtained. Accordingly, this issue is REMANDED for the following actions: 1. Obtain updated VA treatment records. Based on the treatment reports received, any necessary development must be accomplished. The Veteran may be re-examined, if necessary. 2. Then, after undertaking any other development deemed appropriate, re-adjudicate the issue of entitlement to TDIU with consideration of the additional disability ratings granted herein. If the benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ RYAN T. KESSEL Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs